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Tuesday, April 12, 2011

Excerpt from Spector Reply Brief re. Tannazzo Testimony

Excerpt from Spector reply brief re Tannazzo testimony.

As appellant has demonstrated, however, his initial statement, as reported by Tannazzo made a decade before the charged offense and to the effect that all women deserve abullet in their heads — fails to pass even this preliminary threshold.

Specifically, a comment, however pointed or angry, about what women do or not“deserve” is a far cry from a plain statement of intent to harm that can authorizeadmission under governing case law. Echoing the trial court’s rationale, the stateresponds that there is no requirement that a generic threat be more definite than thatadmitted here because the “context and wording unambiguously showed a deep-seatedbelief about women” and because questions concerning the statement’s meaningimplicate issues of weight rather than admissibility. (RB, at 99.)This claim is nonsense. Case law nowhere suggests that evidence of a “deepseated” animosity towards a victim class — essentially, simple propensity evidence — isenough to constitute admissible evidence of a generic threat in a homicide prosecution.

To the contrary, each of the cases cited by respondent (and appellant) approving theadmission of “generic threats” has involved a statement(s) that, on its face, involves thedefendant’s direct statement of an intent to harm rather than a remark about what “shouldhappen” to another, as occurred here. (CITATIONS OMITTED). Nor do any of the cited cases suggest that, notwithstanding 18 the potential for undue prejudice arising from purported threat evidence, the question is merely one of“weight” rather than admissibility.

Putting aside its failure to constitute a cognizable “threat” at all, appellant’s initialstatement simply cannot be deemed to reflect an abiding, i.e., non-transient, intent to killor harm in light of the substantial amount of time — again, Tannazzo’s shifting accountultimately settled on roughly a decade — between the statement and the charged offense.(See AOB, at 119-122.) Recognizing the difficulty presented by this critical condition,respondent seeks to alter the governing criteria by arguing that lapse of time is merely a“factor” in determining the duration of the alleged intent under Karis. (RB, at 100-101.)But Karis does not call for application of a “balancing test” where one “factor,” (here,time) is weighed against various others to determine an outcome. To the contrary, thatcase holds that the remoteness of the threat alone “suggests” impermanence and, with that suggestion, requires exclusion. (See id., 46 Cal.2d at 637 (evidence of qualifying generic threat is admissible “unless the circumstances in which the threat was made, the lapse of time, or other evidence suggests that the state of mind was transitory and no longer existed at the time of the charged offense. . .”) [emphasis added].)

Furthermore, and of great significance, none of the cases cited by respondent orlocated by appellant has approved the admission of “generic threat” evidence afteranything approaching the 10 year period between purported “threat” and offenseappearing here. (See RB, at 98-103.) Having failed to locate any such authority,respondent seeks to change the subject by invoking decisions in which reviewing courts,applying section 1101(b), have approved the admission of similar bad acts evidence thatwas even more temporally remote. (See RB, at 101, citing People v. Davis (2009) 46Cal.4th 539, 602 [admitting prior acts as evidence or common scheme or plan and intentto commit sexual assault] and People v. Steele, 27 Cal.4th 1230, 1245 [admittingevidence of prior homicide on issue of premeditation as to charged offense].)

The obvious flaw here is that, again, these cases did not involve generic threats at all, butrather similar acts of misconduct that were proffered and admitted under the different legal criteria required by section 1101(b), People v. Ewoldt (1994) 7 Cal.4th 380, andrelated authority. As the trial court in this case recognized and the state cannot crediblydispute, in no event could the purported threat described by Tannazzo meet such “similaracts” criteria.